Aide Says Cuomo Could Have Issued Subpoenas in Spitzer Case

By NICHOLAS CONFESSORE and MICHAEL M. GRYNBAUM

Published: August 10, 2007

Attorney General Andrew M. Cuomo could have gained subpoena power in his investigation of Gov. Eliot Spitzer's aides if the state inspector general had referred the matter to his office during the inquiry, an aide to Mr. Cuomo said on Thursday.

Mr. Cuomo and the inspector general, Kristine Hamann, began parallel investigations last month into whether aides to Mr. Spitzer abused their authority by asking the state police to gather information on the use of state helicopters by the Senate majority leader, Joseph L. Bruno.

But at some point in mid-July, Ms. Hamann's staff determined that she faced a conflict of interest in pursuing the matter because she reports to Richard Baum, the secretary to the governor and an important figure in the case.

Under state law, Ms. Hamann can grant the attorney general subpoena power and criminal jurisdiction over any investigation in which the inspector general is faced with such a conflict of interest, Steven M. Cohen, the counsel and chief of staff to Mr. Cuomo, said at a meeting of the Senate Committee on Investigations and Government Operations on Thursday.

At the meeting, Nelson R. Sheingold, a counsel to Ms. Hamann, was pressed on why she did not take that step. Republicans grew increasingly frustrated by his responses.

Ms. Hamann is an appointee of Mr. Spitzer's. Republicans have criticized her for not scrutinizing the administration's actions more closely. (Mr. Sheingold served under Mr. Spitzer when the governor was attorney general.)

''Why didn't they refer that on a timely basis?'' Senator George H. Winner Jr., the Republican who is chairman of the committee, said after the meeting. He added, ''That was not done, that could have been done, and that would have cleared up a lot of the matters that we had here.''

The issue of subpoena power was significant; Mr. Cuomo's investigators, because they lacked that authority, were not able to interview Mr. Baum or another Spitzer aide, Darren Dopp, the communications director, during the investigation. The governor suspended Mr. Dopp when the attorney general's report was publicly released on July 23.

The report concluded that Mr. Dopp and another aide had acted improperly but not illegally. Ms. Hamann endorsed its findings.

''Certainly, having subpoena power would have been useful,'' said Mr. Cohen, during his remarks before the committee. ''In fact, I can't imagine there being an investigation where the prosecutor or investigator wouldn't benefit from the use of the subpoena.''

Mr. Sheingold refused to pinpoint exactly when it became apparent to the inspector general's office that Mr. Baum could have been involved in the effort to use the state police to tarnish Senator Bruno, saying only that it occurred toward the ''very end'' of the inquiry.

By then, said Mr. Sheingold, Mr. Cuomo's investigators had drafted their final report on the matter and provided it to the inspector general's office.

''We read the report, we concluded and, as I said, we concurred with the report, and then we had to make a very realistic, practical determination whether proceeding by my office would simply produce any public good or just to add to the debate,'' said Mr. Sheingold. ''And we determined we should get out.''

Mr. Cohen said the inspector general's office never informed the attorney general of the conflict of interest. Mr. Cuomo's aides learned of it only after they issued their report, he said.

Senate Republicans are pushing for further examination of Mr. Spitzer's aides' conduct. While they have praised Mr. Cuomo's investigation, they insist that Mr. Baum's role deserves further scrutiny, given his closeness to Mr. Spitzer and to Mr. Dopp.

The attorney general's report found that Mr. Baum had received e-mail messages concerning the effort from other aides but did not find him guilty of improper conduct.

In an interview after the meeting, Stephen DelGiacco, a spokesman for Ms. Hamann, said that under her office's interpretation of the law, no referral to Mr. Cuomo could have taken place without a finding or evidence of criminal activity. Mr. DelGiacco said that no other official had asked Ms. Hamann to decline a referral.

''We never knew in the course of our investigation that the attorney general needed our subpoena power,'' he added.

The meeting on Thursday suggested difficulty ahead for Mr. Spitzer as he tries to move past the scandal and focus on governing. Republican and Democratic senators clashed repeatedly, interrupting and talking over one another. The Democrats said that they had not been consulted about the ground rules for the meeting and suggested that the committee could not investigate the matter in good faith because most of its members had been appointed by Mr. Bruno.

Still, none of the Democrats defended Mr. Spitzer, despite his recent efforts to repair his relations with others in his party.

Mr. Winner and the ranking Democrat, Senator Thomas K. Duane of Manhattan, began the meeting by bickering over its format: Mr. Winner said he would give a five-minute opening statement, which Mr. Duane said he had not agreed to.

The bickering gave way to an extended soliloquy by Mr. Winner. Then came a quiet, stubborn voice, that of Mr. Duane: ''Was that your five-minute opening?''

''No, that was not my opening,'' Mr. Winner replied, rolling his eyes.

The committee plans additional meetings on the matter.

Photo: Nelson R. Sheingold, a counsel to the New York inspector general, Kristine Hamann, before a State Senate committee yesterday. (Photograph by Nathaniel Brooks for The New York Times)